Detention: Law of: D.C. Circuit Development

Government's Opening Brief in Hedges

By Benjamin Wittes
Wednesday, November 7, 2012, 12:22 PM

The government has filed its its opening brief in the Second Circuit Hedges appeal. The introduction reads:

This suit is brought by a handful of journalists and activists who, based on their stated activities, are in no danger whatsoever of being subject to capture and detention by the U.S. military, and who presented no evidence that anyone similarly situated has faced military detention in the current conflict under the detention standards as at issue here. The district court nonetheless issued an extraordinary and sweeping injunction at their behest. The court reached out to strike down as facially unconstitutional a duly enacted Act of Congress, Section 1021(b)(2) of the National Defense Authorization Act (NDAA). Section 1021(b)(2) explicitly reaffirms that the President’s detention authority under Congress’s Authorization for Use of Military Force (AUMF) encompasses those who are “part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” NDAA § 1021(b)(2). The AUMF was passed in the immediate aftermath of the terrorist attacks on September 11, 2001, and constitutes the President’s central legislative authority for the ongoing military operations against al-Qaeda, the Taliban, and associated forces, including operations in Afghanistan.

The district court nonetheless entered a sweeping permanent injunction against the President, in his role as Commander in Chief, barring “enforcement of § 1021(b)(2) in any manner, as to any person” worldwide. SA-189-90. The court also reached out to reject longstanding interpretations of the AUMF, which had been endorsed by all three Branches of government, including Congress, two Presidents, and the D.C. Circuit, even though the AUMF was not challenged in this case. To make matters worse, the district court threatened the Executive with contempt sanctions if the military detains those it captures---even during ongoing operations in Afghanistan---in a manner inconsistent with the court’s own narrow reading of the military’s authority. SA-92.

As we will explain, the court’s unprecedented order must be reversed for four independent reasons. First, the plaintiffs do not have standing because they face no threat of military detention under a proper interpretation of the law. Second, no action lies here to prospectively enjoining the President, as Commander in Chief, and those acting under his command in the conduct of congressionally authorized military operations against enemy forces as defined by Congress. Indeed, there is no precedent in our history for such a sweeping facial and ex ante challenge to the President’s authority to wage war in a congressionally declared armed conflict. Third, a statute authorizing the use of military force in broad terms is not subject to an ex ante or facial challenge for being unconstitutionally vague or overbroad, and in any event Section 1021(b)(2) satisfies due process and First Amendment standards even if they were to apply. Finally, the injunction is not an appropriate exercise of a court’s equitable powers in this context and, by applying worldwide and reaching actions that were not even challenged, it is, in any event, vastly overbroad.

The plaintiffs' brief is due December 3. The government's reply is due December 13.